Public interest and injunction applications

13.42 In the Discussion Paper, the ALRC proposed that legislation be enacted to require a court to give particular consideration to countervailing public interests, including freedom of expression, when considering an application for an injunction to prevent publication of private information, where there was not an added element of confidentiality.[44]

13.43 It was suggested that such a proposal would be desirable if the statutory tort were not enacted, and if, instead, greater protections against disclosure of (merely) private information were to develop at common law by way of the extension of the equitable action for breach of confidence.

13.44 To a certain extent, the proposal rested on an assumption that the likely development of the law would be along the lines of the development in the United Kingdom. The proposal suggested a way of directing the future development of the law. It assumed familiarity with the differences between the current law in the United Kingdom, which includes a similar provision in its Human Rights Act 1998 (UK), and the current Australian law on breach of confidence.

13.45 The background to the proposal was the lack of clarity, which persists, about the principles that should govern the exercise of the court’s discretion in any action to protect private information: would a court take an approach similar to that in breach of confidence cases or to that in defamation cases?

13.46 Australian case law provides only a very limited role for public interest considerations as a justification for restraining publication in breach of an obligation of confidence.[45] Injunctions are readily awarded to restrain the breach of a negative covenant, such as a promise not to breach confidence by revealing confidential information. The courts stress in such cases that there is an important public interest in the law holding a person to an obligation of confidence that they undertook or knew about: people will not volunteer information, even where it is in the public interest that they should do so,[46] if they feel the confidence will not be respected and enforced.

13.47 By contrast, defamation law incorporates well-established principles that protect freedom of speech, so that it is very difficult to obtain an injunction to restrain a defamatory publication if the defendant puts up a serious argument that it can be justified.[47]

13.48 The ALRC did not propose any legislative change to the way in which courts approach traditional breach of confidence cases. Rather, the ALRC’s proposal was that there should be explicit consideration required of freedom of speech and other public interests in applications to prevent the publication of information which is deemed to be private—but which was not subject to an obligation of confidence.

13.49 Some stakeholders were in favour of the proposal, expressing concern at the narrow defence of public interest in Australia to breach of confidence actions or at the chilling effect of injunctions on freedom of speech. However, most stakeholders concentrated on other issues in the Discussion Paper. After discussions and consultations with members of the legal profession and the judiciary about this proposal,the ALRC concludes that it may be premature to attempt to direct the approach of the common law as proposed. Therefore, the ALRC does not make any recommendation in the Final Report with respect to injunctions where the plaintiff relies on the common law to protect private information.[48]

13.50 The ALRC considers the desirability of a legislative provision with respect to injunction applications under the new tort in Chapter 12.